Abisai Said vs Republic (Criminal Appeal No. 418 of 2023) [2026] TZCA 270 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. 3.A.. CRIMINAL APPEAL NO 418 OF 2023 ABISAI SAID APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Nqunvale, J.) dated the 6th day of March, 2023 5* 819 * March, 2026 AGATHO. 3.A.: The appellant, Abisai Said was charged before the District Court of Chunya at Chunya with two counts namely; rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code [Cap 16 R.E. 2019] and the offence of impregnating a school girl contrary to section 60 (1) (a) (2) of the Education Act No. 2 of 2016. The particulars on both counts alleged that [in] December 2020 at Makongolosi village, Chunya District in Mbeya Region, the appellant raped and impregnated the victim, a form three student at Makongorosi Secondary School aged 15 years. in Criminal Appeal No. 76 of 2022 JUDGMENT OF THE COURT

The prosecution's case relied heavily on the testimony of the victim (PW1) who testified that the appellant was her neighbour and they had entered sexual relationship around November 2020. According to her evidence, the two engaged in sexual intercourse multiple times throughout November and December 2020 without using any form of contraceptives. Consequently, she discovered she was pregnant and identified the appellant as the person responsible for the pregnancy due to the sexual acts. PW4, Dr. Anthony Simon Masanyiwa, conducted a medical examination of PW1 on 1s t February 2021. He testified that the examination confirmed the victim was five weeks pregnant and posted the results in the PF3 (Exhibit PEI). PW2 (the victim's father) testified that his daughter was born on April 3, 2006, confirming she was 15 years old thus a minor at the time the offences were committed. PW3, F 3098 D/CPL Meshack, who conducted the interrogation of the appellant, testified that during the interrogation, the appellant confessed to being in a sexual relationship with the victim. However, the prosecution did not bother to tender a Cautioned Statement to substantiate this alleged confession if at all there was one. 2

In his defence (DW1), the appellant completely denied the allegations of rape and impregnating the schoolgirl. He claimed he did not know the victim at all as he only encountered her for the first time in court. After a full trial, the trial court convicted the appellant for both counts and he was sentenced to thirty years imprisonment for each count and the sentences to run concurrently. His appeal to the High Court was unsuccessful. Aggrieved again he preferred the instant appeal. For reasons that will become apparent shortly, we will conveniently restate one ground of appeal in the amended memorandum of appeal that was decisive, that is:

1. That, the two courts below erred in law and fact in grounding the conviction of the appellant in respect of first and second counts without taking into consideration that there was [variation] between the charge sheet and the evidence ofPW l and PW2 regarding the date of incident, hence the case was not proved beyond all reasonable doubts. When the appeal was called on for hearing, the appellant fended himself whereas the respondent Republic was represented by Mr. Alex Mwita, Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys assisted by Mr. Dominick Mushi, learned State Attorney. 3

The appellant adopted his grounds of appeal and opted for the learned State Attorney to make his reply submission and he will rejoin subsequently if need be. In his reply, Mr. Mushi outrightly intimated that they support the appeal. He went on conceding to ground 1(a) which the appellant complains about the variance between a charge sheet and evidence. He referred to the evidence of PW1 and PW2 and conceded that the charge sheet shows that the offences were committed in December 2020 while on page 16 of the record of appeal, PW1 testified that she and the appellant began making love in November 2020. Moreover, PW2 testified that they suspected PW1 to be pregnant on 01/12/2021. The learned State Attorney admitted that there is a material variance between a charge sheet and evidence. The remedy, he asserted, was for the prosecution under section 251 of the Criminal Procedure Act [Cap 20 R.E. 2023] (the CPA) to amend the charge sheet so that charge sheet to tally with the evidence. He submitted that as a result the charge was not proved. In the end he urged the Court to quash the conviction and set aside the sentence imposed upon the appellant and set him free. We agree with Mr. Mushi that this appeal hinges on the appellant's complaint that there is variance between the charge sheet and evidence. It is evident that the particulars of both counts occurred [in] December 4

2020. However, the testimony of the victim states that their sexual relationship commenced as of November 2020 and the two engaged in sexual intercourse multiple times throughout November and December 2020 without using any form of contraceptives. PW1 being a key witness, her testimony does not support the charge sheet. Her evidence varies with the particulars of the charge sheet. It is uncertain as to when the appellant raped and impregnated her. The Court has held in its several decisions that the prosecution side is obliged to prove what is stated in the charge sheet. When a specific date, time and place is mentioned in the charge sheet, the prosecution must prove that the offence was committed on that specific date, time and place. See Mathias s/o Samweli vs Republic [2012] TZCA 341. As rightly submitted by Mr. Mushi, where there is variance between the charge sheet and the evidence, the remedy is to amend the charge failure of which the preferred charge remains unproved and the accused shall be entitled to an acquittal as a matter of right. See section 251(1) of the CPA and the case of Kandola Paulo @ Kadala vs Republic [2018] TZCA 625. Therefore, since the prosecution failed to amend the charge sheet to bring it into consistence with the evidence, the omission is fatal and prejudicial to the appellant as the charge remained unproven thus giving 5

the benefit of doubts to the appellant. See Salum Rashid Chitende vs Republic [2015] TZCA 572. In the upshot, we find merit in the appeal and allow it. Consequently, the conviction is quashed and the sentence imposed on the appellant is set aside. We order for his immediate release from prison unless continues to be held for other lawful reason(s). DATED at MBEYA this 6thday of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 9th day of March, 2026 in the presence of the appellant in person, Ms. Upendo Lyimo, learned State Attorneys for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original.